Kurtock v. Cleveland Bd. of Zoning Appeals , 2014 Ohio 1836 ( 2014 )


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  • [Cite as Kurtock v. Cleveland Bd. of Zoning Appeals, 2014-Ohio-1836.]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 100266
    JULIE KURTOCK
    PLAINTIFF-APPELLANT
    vs.
    CLEVELAND BOARD OF
    ZONING APPEALS, ET AL.
    DEFENDANTS-APPELLEES
    JUDGMENT:
    REVERSED AND REMANDED
    Administrative Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CV-12-786398
    BEFORE: S. Gallagher, P.J., Stewart, J., and E.A. Gallagher, J.
    RELEASED AND JOURNALIZED:                         May 1, 2014
    ATTORNEY FOR APPELLANT
    Alan J. Rapoport
    25700 Science Park Drive, Suite 270
    Beachwood, OH 44122
    ATTORNEYS FOR APPELLEES CLEVELAND BOARD OF
    ZONING APPEALS AND CITY OF CLEVELAND
    Barbara A. Langhenry
    Director of Law
    BY: Carolyn M. Downey
    Assistant Director of Law
    City of Cleveland
    601 Lakeside Avenue, Room 106
    Cleveland, OH 44114
    ATTORNEYS FOR APPELLEE KAREN O’MALLEY, INC.
    Thomas J. Scanlon
    Harvey Labovitz
    Julie A. Perkins
    Collins & Scanlon, L.L.P.
    3300 Terminal Tower
    50 Public Square
    Cleveland, OH 44113
    SEAN C. GALLAGHER, P.J.:
    {¶1} Appellant Julie Kurtock appeals the judgment of the Cuyahoga County Court
    of Common Pleas that affirmed the decision of the Cleveland Board of Zoning Appeals to
    grant a use variance to appellee Karen O’Malley, Inc. (“O’Malley”). For the reasons
    stated herein, we reverse and remand the matter for further proceedings.
    {¶2} O’Malley owns the “Harp,” a bar-restaurant that offers live music three times
    per week. O’Malley filed an application with the city of Cleveland’s Department of
    Building and Housing for a “music” use variance to present outdoor entertainment on a
    patio. The city’s zoning administrator not only denied the application, but informed
    O’Malley that the Harp had been illegally presenting live music because doing so was not
    a permitted use in a general retail business district and because the restaurant was not
    located more than 500 feet from a residence district.
    {¶3} The Cleveland Board of Zoning Appeals (the “board”) reversed the city’s
    decision and granted a use variance over the objection of Kurtock, a local resident who
    complained about loud music from the restaurant. The board granted the variance to
    permit live music three nights per week and required O’Malley to comply with the terms
    of a “Good Neighbor Agreement” in which O’Malley and a local neighborhood
    organization agreed to certain terms and conditions about how and when the Harp would
    have live music.
    {¶4} Kurtock filed an administrative appeal naming the board as a defendant,
    along with O’Malley. The lower court granted a motion to dismiss the board as a party
    and gave appellant leave to file an amended notice of appeal. Kurtock filed an amended
    notice of appeal naming appellee city of Cleveland as a party.
    {¶5} The lower court affirmed the board’s decision. This appeal followed.
    {¶6} Kurtock’s first assignment of error claims that the court erred by dismissing
    the board as a party. We find no merit to this argument. The board was not a party to
    the action, but rather was the body that decided whether the issuance of the variance was
    appropriate. Safest Neighborhood Assn. v. Athens Bd. of Zoning Appeals, 4th Dist.
    Athens Nos. 12CA32, 12CA33, 12CA34, and 12CA35, 2013-Ohio-5610, ¶ 11. Further,
    the board is not a party to an appeal from a case it decides. Id.; see also Russell v.
    Dublin Planning & Zoning Comm., 10th Dist. Franklin No. 06AP-492, 2007-Ohio-498, ¶
    19. Kurtock’s first assignment of error is overruled.
    {¶7} Kurtock’s second assignment of error claims the lower court abused its
    discretion by granting the use variance.
    {¶8} When we review a court of common pleas decision in an administrative
    appeal, our standard of review is far more circumscribed than that used by the court of
    common pleas when it sits in an appellate capacity. The court of common pleas has the
    authority to “find that the order, adjudication, or decision is unconstitutional, illegal,
    arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial,
    reliable, and probative evidence on the whole record.” R.C. 2506.04. Unlike the court
    of common pleas, we do not have the same extensive power to weigh the preponderance
    of substantial, reliable, and probative evidence that is granted to the lower courts. We
    can only review the lower court for errors of law. Henley v. Youngstown Bd. of Zoning
    Appeals, 
    90 Ohio St. 3d 142
    , 147, 2000-Ohio-493, 
    735 N.E.2d 433
    .
    {¶9} Initially, we must recognize that the issue of Kurtock’s standing to bring an
    administrative appeal was raised before the lower court, yet it was not addressed in the
    court’s decision. Because standing is a jurisdictional requirement for an administrative
    appeal, the lower court should have determined standing in the first instance.
    {¶10} In an administrative appeal, standing is a jurisdictional prerequisite that can
    be raised at any stage of the proceedings and may also be addressed sua sponte. Safest
    Neighborhood Assn., 4th Dist. Athens Nos. 12CA32, 12CA33, 12CA34, and 12CA35,
    2013-Ohio-5610, at ¶ 10, 34. The party seeking to appeal has the burden of proof to
    establish standing. 
    Id. at ¶
    20.
    {¶11} “[A] third party property owner has standing to appeal an administrative
    agency decision under R.C. 2506.01 when that property owner actively participated at the
    administrative hearing and has been directly affected by the decision.”              Safest
    Neighborhood Assn. at ¶ 24. One is directly affected, as distinguished from the public at
    large, when the party can demonstrate a unique harm.          
    Id. at ¶
    26.    For instance,
    concerns regarding increased traffic alone have generally been regarded as affecting the
    public at large, while evidence showing a diminution in property value because of an
    administrative decision has been found to constitute a direct effect sufficient to confer
    standing. 
    Id. {¶12} It
    appears from the record that the only evidence to demonstrate Kurtock’s
    residence was within 500 feet of the Harp was Kurtock’s testimony that it was. In any
    event, the “directly affected” determination is not in any way dependent on what persons
    are entitled to notice under the municipal code. Am. Aggregates Corp. v. Columbus, 
    66 Ohio App. 3d 318
    , 322, 
    584 N.E.2d 26
    (10th Dist.1990). Rather, the appropriate inquiry
    for standing is whether the private litigant has complained of “harm which is unique to
    himself[,]” as opposed to the community at large, in an administrative appeal from a
    zoning decision.   Willoughby Hills v. C. C. Bar’s Sahara, 
    64 Ohio St. 3d 24
    , 27,
    1992-Ohio-111, 
    591 N.E.2d 1203
    .
    {¶13} In order to have standing, Kurtock must establish she is directly affected and
    suffers a unique harm as a result of the variance. Kurtock testified to the noise from the
    Harp affecting her right to “peace and quiet.” Arguably, noise was a concern shared
    equally by the neighboring community as reflected by the entering of the good neighbor
    agreement. As the board found, “there is an understanding through a Good Neighbor
    Agreement that those concerns of noise will be mitigated and to the greatest possible
    extent through engineering, through design of the stage, and design of useful equipment,
    outside especially.” The board included the conditions of the good neighbor agreement
    when granting the variance. Although a noise-based injury may provide a basis for
    unique harm, the injury must be more than speculation and supported by credible
    evidence.
    {¶14} We find the matter should be remanded to the lower court for consideration
    of Kurtock’s standing. The lower court should determine whether Kurtock has shown
    her concerns for excessive noise are substantiated and establish a unique harm.
    {¶15} Presuming Kurtock has standing, the matter should be returned to the
    Cleveland Board of Zoning Appeals for a determination of the practical difficulty or
    unnecessary hardship requirement under Cleveland Codified Ordinances (“CCO”)
    329.03(b). Pursuant to CCO 329.03(b), the board’s authority to grant a variance is
    limited to specific cases where the following conditions are shown:
    (1) The practical difficulty or unnecessary hardship inheres in and is
    peculiar to the premises sought to be built upon or used because of physical
    size, shape, or other characteristics of the premises * * * which differentiate
    it from other premises in the same district and create a difficulty or hardship
    caused by a strict application of the provisions of this Zoning Code not
    generally shared by other land or buildings in the same district;
    (2) Refusal of the variance appealed for will deprive the owner of
    substantial property rights; and
    (3) Granting of the variance appealed for will not be contrary to the purpose
    and intent of this Zoning Code.
    {¶16} The burden to prove the three conditions set forth in CCO 329.03(b) is on
    the party seeking the variance, and the failure to establish all three conditions requires the
    board to deny the requested variance. See Consol. Mgt., Inc. v. Cleveland, 
    6 Ohio St. 3d 238
    , 242, 
    452 N.E.2d 1287
    (1983); Cleveland v. Patrick Realty, 8th Dist. Cuyahoga No.
    90349, 2008-Ohio-4243, ¶ 24. The board is required to “make a finding on each of the
    three (3) conditions as they apply in each specific case as a prerequisite for the granting of
    the variance.” CCO 329.03(c); Zurow v. Cleveland, 
    61 Ohio App. 2d 14
    , 20, 
    399 N.E.2d 92
    (8th Dist.1978).
    {¶17} Our review reflects that the board failed to make all of the predicate findings
    necessary to grant a use variance. The board made findings on two of the three required
    conditions set forth in CCO 329.03(b): it found that refusing O’Malley’s appeal would
    deprive her of substantial property rights and that granting the variance would not be
    contrary to the purposes and intent of the zoning code. The board made no mention of
    “practical difficulty or unnecessary hardship” inherent in and peculiar to the premises that
    differentiate it from other premises in the same zoning district.
    {¶18} We recognize that although the board did not specifically make a finding of
    practical difficulty or unnecessary hardship, this requirement was considered by the board
    in reaching its decision. As reflected in the transcript of proceedings, the board was
    aware of the requirements under the ordinance. Each subsection of CCO 329.03 is to be
    read and applied in para materia. Consol. Mgt., 
    Inc., 6 Ohio St. 3d at 242
    , 
    452 N.E.2d 1287
    .
    {¶19} The record also demonstrates that evidence was offered on this point. The
    transcript reflects that the board chairman inquired into what hardship would happen if
    the variance were not granted. The attorney for O’Malley responded that a lack of music
    would result in a 30 percent reduction in persons coming, resulting in a significant
    detriment to the business.      Also, evidence was presented that the Harp had been
    operating with music for 13 years and sought the variance to become code compliant.
    The board recognized that O’Malley had kept a positive business presence during that
    time and had made property improvements to enhance the economic development of a
    retail corridor along Detroit Avenue.      A “good neighbor agreement”       was reached
    between O’Malley and the local neighborhood organization and submitted to the board
    prior to the hearing. The board considered that O’Malley agreed to certain conditions
    concerning the times during which music could be played and that the concerns of noise
    would be mitigated to the greatest possible extent.
    {¶20} Despite any consideration of practical difficulty or unnecessary hardship, the
    board did not make the requisite finding.       The determination should be left to the
    discretion of the board, and additional evidence may be considered upon any remand.
    {¶21} With the absence of findings going to all three of the conditions required to
    obtain a variance under CCO 329.03(b), the board had no authority to issue the variance.
    Therefore, the lower court’s affirmance of the board’s decision was an error of law. The
    second assignment of error is sustained.
    {¶22} The matter is remanded to the lower court for consideration of Kurtock’s
    standing, and if standing is found, for the lower court to remand the matter to the
    Cleveland Board of Zoning Appeals to address the required finding of unnecessary
    hardship under CCO 329.03(b).        Pending resolution of these issues upon remand,
    O’Malley shall be permitted to continue existing operations in conformance with the good
    neighbor agreement.
    {¶23} Judgment reversed; cause remanded.
    It is ordered that appellant recover of appellees costs herein taxed.
    The court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate issue out of this court directing the common
    pleas court to carry this judgment into execution.
    A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
    the Rules of Appellate Procedure.
    SEAN C. GALLAGHER, PRESIDING JUDGE
    EILEEN A. GALLAGHER, J., CONCURS;
    MELODY J. STEWART, J., CONCURS IN PART AND DISSENTS IN PART (WITH
    SEPARATE OPINION)
    MELODY J. STEWART, J., CONCURRING IN PART AND DISSENTING IN PART:
    {¶24} I agree that the court’s affirmance of the board of zoning appeals’ decision
    to grant O’Malley a variance must be vacated. The board did not address the issue of
    practical difficulty or unnecessary hardship, so the court erred as a matter of law by
    affirming a variance that issued in error. I respectfully dissent from the majority’s dicta
    regarding standing and whether this reversal can be viewed as a remand to allow the
    board to make a finding that it did not make below.
    I
    {¶25} In its brief to this court, the city concedes that the court’s failure to address
    standing means that standing is no longer an issue: “[t]he common pleas court did not
    address the issue of standing. Therefore, it is not properly before this court.” The
    reason why the court did not address standing is because the city’s argument was
    frivolous. The city’s zoning ordinances prohibit a restaurant like the Harp from offering
    live music unless it is located at least 500 feet from a residential district. The city
    claimed that Kurtock did not live within 500 feet of the Harp, but it arrived at that
    conclusion by calculating the driving distance from the Harp to Kurtock’s house. The
    proper method of determining distance is by drawing a straight line from the edge of the
    Harp’s property to Kurtock’s house; colloquially, “as the crow flies.”       There is no
    question that Kurtock’s house is within a 500-foot radius of the Harp, so she plainly had
    standing. The court showed the city mercy by not addressing that argument.
    {¶26} The majority now offers a standing argument that the city did not raise: it
    suggests that Kurtock has not shown a “unique” harm sufficient to confer standing
    because everyone else in the “neighboring community” was likewise subjected to music
    emanating from the Harp. This begs the question of who has standing to challenge the
    variance. If Kurtock, a resident living within 500 feet of the Harp, lacked standing to
    oppose the variance, no one would have standing to object.         That is an untenable
    conclusion.
    II
    {¶27} The majority also engages in dicta to suggest that the board’s failure to
    make any finding on the unnecessary hardship factor is an omission that can be cured on
    remand because O’Malley offered evidence of unnecessary hardship in its application to
    the board. There are two difficulties with this dicta.
    {¶28} First, it incorrectly assumes that the board’s failure to make all of the
    required findings somehow means that this case is still open and subject to remand to rule
    on the unnecessary hardship requirement. That the board did not make a finding on
    unnecessary hardship must be viewed as a failure of proof such that a variance could not
    issue and this case is now over. We reached this same conclusion in Cleveland v. Patrick
    Realty, 8th Dist. Cuyahoga No. 90349, 2008-Ohio-4243, where we found that the city’s
    board of zoning appeals failed to make a finding on all of the requirements necessary to
    grant a variance under Cleveland Codified Ordinances 329.03(b), so “the trial court
    should have found that ‘there is not a preponderance of reliable, probative and substantial
    evidence to support the board’s decision.’” 
    Id. at ¶
    35 (citation omitted). We thus
    mandated that the trial court enter “final judgment” in favor of the party opposing the
    variance. 
    Id. If O’Malley
    wishes to further pursue a variance, it must begin anew by
    filing a new application for a variance.
    {¶29} Second, I see no basis from which it can be concluded that the board simply
    omitted making a finding on unnecessary hardship.         I agree that O’Malley offered
    evidence on unnecessary hardship, but that evidence was legally insufficient to prove the
    requirement. O’Malley told the board that the Harp suffered a “30 percent reduction in
    persons coming in” on nights when it did not present live music. A 30 percent reduction
    in “persons” coming in does not necessarily correlate to a 30 percent reduction in
    revenue. But the Harp did not play music on the majority of nights when it was open, so
    it is better to say that O’Malley’s business improved by 30 percent when she offered live
    music. Viewed in that light, she was seeking the variance because live music was better
    for business, not because her business was unprofitable without music.          The Ohio
    Supreme Court has made it plain that “the mere fact that one’s property can be put to a
    more profitable use does not, in itself, establish an unnecessary hardship where less
    profitable alternatives are available within the zoning classification.” Consol. Mgt., Inc.
    v. Cleveland, 
    6 Ohio St. 3d 238
    , 242, 
    452 N.E.2d 1287
    (1983). The board’s failure to
    make a finding of unnecessary hardship could thus be viewed as it not finding any
    evidence for that requirement.